The Death Penalty Revisited

My post on Anders Behring Breivik and the argument his case provided against death penalty sparked some very interesting responses. Will Schenk described an interesting–and from the sound of it, extremely disturbing–meeting with a person whom he felt ‘deserved’ to be destroyed. I don’t think I’m exaggerating; please correct me if so. For Will did say,

It’s not my place to pass these judgements, not really sure if it’s anyones place, but there’s a sense of letting my fellow people down by not acting on the impulse to destroy this person. It’s not retribution nor even a matter of breaking the law, it’s a impulse that there needs to be some level of common humanity between everyone for us to live together, and that on some level this person wasn’t really Human. He was too Different.

Will’s comment expresses the feeling that the death penalty should be deployed against those who are not part of our ‘community of persons’ (that is what the capitalized ‘Human’ is pointing to in his comment). The failure to abide by some agreed upon standard of membership–in this moral community–is the disqualification for further continuance of life. But of course, the decision to act on what might be a flawed assessment of this failure to achieve a ‘level of common humanity’,  or not a universally shared one, is what is problematic: Why is destruction an appropriate response to this recognition of an Other? That still needs an added argument – we share our world with many creatures that are not persons and do not share our common humanity (and many of them are dangerous to us) – but we do not destroy them all, surely?

Noah Barth also wrote, expressing another intuition that might be familiar, that the death penalty could be brought out for those ‘beyond redemption’:

I think that Breivik illustrates the most cogent argument I have heard in favor of the death penalty. Namely, that some people are beyond retribution. On some level or another any moratorium campaigner is anti-capital punishment because they want to believe in the sacredness of human life. Part of this is the assumption of one’s ability to redeem oneself. But what about a case of a clear, absolute sociopath such as Breivik? He undoubtedly will never be able to re-enter society.

Note that Noah links the argument against death penalty to a belief in the ‘sacredness of human life.’ This might be implicit in my earlier post and if so, there is a flaw in my argument. I don’t think human life is ‘sacred’ in any way. There is moreover, another problem: How are we to gauge the possibility of redemption? On a case-by-case basis? That seems intractable especially since it is not clear how such evaluations could be carried out; they appear subject to too many prejudices. Which brings me to the next comment.

Daniel Kaufman wrote in to say,

The death penalty is unacceptable for one simple reason: it is an irreversible punishment. Given the inherent fallibility of human institutions, states should never issue punishments that cannot be taken back later, if it turns out that a mistake was made. The death penalty is such a punishment and for that reason alone, is indefensible..

This argument has some very desirable features: it avoids mention of the intrinsic value of human life, avoids difficulties in assessing membership of a moral community and in ascertaining possibilities of redemption. It concentrates on an undeniable aspect of the death penalty: it cannot be reversed. Of course, neither can time spent in a jail, but there at least the possibility of release remains a ‘live’ one. (No pun intended!)